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From your media lawyer: PRs should refuse to help the rich and powerful use ‘lawfare’ to maintain reputations

In a recent House of Commons debate initiated by David Davis MP he used the term “lawfare” which he defined as the “misuse of legal systems and principles by extraordinarily rich individuals and organisations to destroy their critics and opponents”. He also condemned SLAPP (Strategic Litigation Against Public Participation).

Reputation management for the rich and powerful

Since financial reward will - absent a robust response from their subject - drive derogatory treatment by the media of high-profile individuals and organisations, in most cases effective reputation management will require a degree of robustness via the deployment of the regulatory and legal provisions that are in place for the very purpose of preventing the public being misled.

That is also essential to the public interest. In a seminal case about the tension between the rights of free speech and reputation, Lord Hobhouse said this; “No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying of facts as statements which are not true is destructive of the democratic society and should form no part of such a society …. These are general propositions going far beyond the mere protection of reputations”.

It follows then that it is in society’s interests that even large and powerful organisations and individuals should enjoy some means of protecting themselves against “misinformation”. Were there to be an independent and effective press regulator - which there is not - then that would be the appropriate forum to achieve this. Where the press is sued by such parties it therefore often only has itself to blame.

However, when a squad of Russian oligarchs armed with a battalion of lawyers lines up against an author who writes on a subject of primary importance - the domestic influence of some of President Putin’s courtiers - then it is entirely right and proper that such a situation is debated in Parliament and questions raised about whether the current state of both the law and the regulation of the legal profession is adequate to ensure that public debate over such issues is protected. It also seems to me that as a reputation management exercise, such a massive and indiscriminate show of force is self-defeating; as I would have advised had I been instructed.

Media lawyers suffer reputation damage

David Davis said this; “It is very clear that some London-based law firms have found an incredibly profitable niche that they are willing to pursue without too much concern about the outcome. I think the professional bodies for those law firms should be looking very hard at them, as should the Government”.

MPs criticised a number of firms including Mishcon de Reya, Schillings, Harbottle & Lewis and CMS and Carter-Ruck, and said that the lawyers responsible for such activity should be held to account. I must hold my hands up and say that I was for a number of years a partner at Schillings, though my practice has moved on since then and is I believe both better honed and more effective.

Just as a number of leading law firms have suffered their own reputation damage during the course of this debate, a once-mighty PR agency (Bell Pottinger) collapsed with astonishing rapidity because damage to its reputation caused by its poor choice of clientele

If your client choice and methodology create the impression that you are an ethics-free zone, then your ability effectively to represent your client will be undermined; and ultimately so will your business.

Striking a balance

One MP wisely reminded the House that the boot is often on the other foot; “For every David sued by Goliath - for every oligarch chasing an investigative reporter - there may be a…newspaper willing to libel an innocent citizen knowing that they can afford neither the cost of bringing the claim nor the risk of losing one”.

Even organisations and individuals who have ‘form’ may be confronted with a story which is untrue, in which case it is entirely right that the publication of that story should be challenged. But there are occasions when the astuteness which any good media lawyer should acquire during the course of their practice informs them that they are being asked to rob the general public of their right to be told about the wrongdoing of a high- profile organisation or individual. At that point a line has been crossed, and a PR professional should think carefully before risking their own reputation by doing such work.

Our societal responsibilities

That is not the only reason why I have declined to act for some powerful and rich clients. Sometimes - as a devout Christian it has been a question of conscience. But alongside my 30 years as a reputation management lawyer, I have also defended good-quality journalism. More than once I have said to a client that the broadcaster/newspaper in this situation is merely doing its job, and not only would I not be able to prevent the publication issue; there was strong public interest in the publication taking place. Those occasions are rare, but I believe every reputation management professional should remember in their work the importance of a free media to our democracy.

It is very difficult to lay down a hard-and-fast rule about when a particular client or specific instruction should be declined. Unless we adopt an entirely blinkered view, most of us will recognise when what we are in effect being asked to do is to deploy “lawfare” to cover up wrongdoing. The press has spent vast sums of money on lawyers to achieve exactly that outcome when it comes to its own wickedness and criminality. That does not mean that PR professionals should follow suit.

No easy answers

These are all incredibly important issue questions, for which there are no easy answers. I am certainly not going to attempt any in this article, though I address them in detail in my forthcoming book Reputation Matters. However, it behoves all of us who practice reputation management to keep these issues in mind when deciding what clients we take on, and how we do their work.

Written by Jonathan Coad, crisis PR lawyer

If you enjoyed this article you might find this podcast on "Does PR have an ethics problem?"

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